But organisations need to careful about employees’ actions ‘in the course of employment’
In a recent case, Bellman v Northampton Recruitment, the High Court had to decide whether an employer was vicariously liable for a managing director’s brutal, unprovoked attack on an employee at an impromptu drinking session three hours after the firm’s Christmas party had finished.
After the party ended, a number of staff members went to a hotel, including the firm’s managing director and Bellman, a sales manager. Some staff continued to drink alcohol. For about 45 minutes there was general chit chat on a variety of topics. Then the conversation turned to company business, including plans for the following year. Bellman brought up the issue of a recent appointment to the firm, which proved controversial. The managing director, now very intoxicated, became annoyed. He lectured those present about how he owned the company; he was in charge; he would do what he wanted; the decisions were his to take and he paid their wages. Nevertheless, Bellman, in a non-aggressive manner, challenged the managing director’s decision about the location in which the new recruit should work.
The managing director punched Bellman, who fell down. Bellman got back up, bleeding from his left eye area, holding out his hands in a gesture of surrender. The director then hit him again, so that Bellman fell straight back, hitting his head on the ground and rendering him unconscious. He was taken to hospital, where a scan revealed he had a fractured skull. He was eventually diagnosed as having suffered a severe traumatic brain injury with subsequent cognitive, emotional and behavioural consequences, with the result that he was unlikely to return to any paid employment. He sought damages from the employer, on the basis that the firm was vicariously liable for its managing director’s actions.
High Court
For Bellman’s case to succeed, his legal team needed to show the firm was liable for its managing director’s wrongdoings. This required a sufficient connection between the assault and the nature of the managing director’s employment to conclude it would be fair to hold the firm liable, even though it had committed no wrong. The judge decided the employer was not vicariously liable (responsible in law) for five main reasons:
- The assault was committed after, not during, an organised work social event
- What followed after the party was an "impromptu drink"
- The spontaneous post-event drink at the hotel could not be seen as a seamless extension of the Christmas party; the participants were hotel guests, having a very late drink
- There must be a limit to the effect of a discussion being about work-related issues. The first part of the conversation was about social topics. Only after that did the conversation turn to work matters
- Although the managing director was trying to assert his authority just before making the attack, merely raising something that relates to duties at work does not change the situation to something which is ‘in the course of employment’
Comment
Most will undoubtedly be appalled by the brutality of the assault in this case and the consequential injuries suffered by the claimant, but those organisations breathing a sigh of relief that the employer was not held liable should do so with caution.
The judge appears to have given great weight to the fact that the attack happened after the company’s Christmas party had finished – it was three hours later, during an impromptu drink, where social maters had been discussed initially. This, it seems, outweighed the evidence that the discussions had turned to work-related matters, including the company’s plans for the future, and that just before the attack, the managing director had gone to great lengths to assert his authority. Decisions on vicarious liability are always finely balanced and another judge may not have seen it the same way; indeed, this judgment may be appealed.
In addition, from an employment law point of view, there are two other aspects to consider. The first is that an organisation may be able to take disciplinary action against an employee for misconduct outside work where it can show the nature of the unacceptable behaviour makes the employee unsuitable to carry out the job he or she is employed to do, or that he or she has acted in a way which damages the organisation’s reputation.
The second issue is that employers are liable for acts of discrimination and harassment committed by employees ‘in the course of employment’ under the Equality Act 2010. This can include an unlawful act occurring at a social gathering outside work where it can be shown that the circumstances amount to an extension of work, for example, a leaving ‘do’, a pub lunch to discuss work matters, or a company Christmas party.
Makbool Javaid is a partner and head of employment law at Simons Muirhead and Burton
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